ANDRE DAVIS, District Judge
Plaintiff, Kristen Turner, after suffering an on-the-job injury in a hospital laboratory, instituted this personal injury action in the Circuit Court for Baltimore City against defendants, Adaltis U.S.A., Inc., Maryland General Hospital, Inc. ("Maryland General"), and James Stewart. Defendants timely removed the case to this court on the basis of diversity of citizenship. The claim against Maryland General has been dismissed. Now pending is the motion for summary judgment filed by defendant Stewart, who asserts that he is immune from liability by virtue of plaintiff's successful prosecution of a workers' compensation claim against Maryland General.
The sole claim asserted in the complaint against Maryland General, which had provided workers' compensation benefits to plaintiff, was intentional infliction of emotional distress. Under Maryland law, to prevail on a claim for intentional infliction of emotional distress, a plaintiff must allege and prove: (1) the defendant's conduct was intentional or reckless; (2) that the conduct was extreme and outrageous; (3) there was a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress was severe. Harris v. Jones, 281 Md. 560, 556, 380 A.2d 611, 614 (1977); Demby v. Preston Trucking Co., 961 F. Supp. 873, 882 (D.Md. 1997). The Maryland Court of Appeals has emphasized that the tort of intentional infliction of emotional distress is to be used sparingly and only for opprobrious behavior that includes truly outrageous conduct. Batson v. Shiflett, 325 Md. 684, 733-35, 602 A.2d 1191, 1216-17 (1992). Liability for this tort has been found "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Kentucky Fried Chicken Nat'l Mgt. Co. v. Weathersby, 326 Md. 663, 670, 607 A.2d 8, 11 (1992).
The allegations of the complaint in this case demonstrate, at most, and as a matter of law, negligent (and perhaps, taken as true, grossly negligent) conduct by defendants Maryland General and Stewart, but nothing approaching the sort of intentional or reckless extreme and outrageous conduct which is needed to support a claim under Maryland law for intentional infliction of emotional distress. Accordingly, even though Stewart did not move to dismiss that count of the complaint, and even though Maryland General largely limited its arguments in support of dismissal to the issue of workers' compensation immunity and election of remedies, I concluded that plaintiff had not alleged, and could not allege, a cognizable claim for intentional infliction of emotional distress based on the underlying facts of her claims.
Consequently, in dismissing Maryland General, an in-state defendant, I determined that Maryland General had been joined in contravention of the "fraudulent joinder" doctrine. Accordingly, I denied plaintiff's motion for remand. By virtue of the instant Order, the sole remaining defendant is Adaltis U.S.A., Inc., the manufacturer of the laboratory equipment whose malfunction allegedly exposed plaintiff to the HIV virus in the hospital laboratory.
The parties have helpfully entered into an agreed statement of facts, which is attached as an exhibit to this Order and will not be repeated here. Furthermore, the parties agree that Maryland law applies here. On the facts as agreed, I am satisfied that, as a matter of law, plaintiff was a "borrowed servant" of Stewart's company, Health Systems, Inc. ("HSI"), which had a contract to manage the Maryland General laboratory, and that HSI (which has not been sued here) and Stewart are protected by immunity under Maryland's workers' compensation scheme. See Whitehead v. Safway Steel Products, Inc., 304 Md. 67, 77-78, 497 A.2d 803, 808-09 (1985). In particular, as in Whitehead, HSI had the ability to control in its entirety the work performance of plaintiff, and, indeed, had the power to hire and fire plaintiff (and other workers in the hospital laboratory). So viewed, it is clear that either HSI or Maryland General would have been liable to provide workers' compensation benefits to plaintiff. Plaintiff has sought and received such benefits from Maryland General. She may not also seek tort damages against her "special employer," HSI, or a fellow-servant also employed by HSI, i.e., Stewart. See id.
Accordingly, it is this 4th day of April, 2005, by the United States District Court for the District of Maryland, ORDERED
That the motion for summary judgment is GRANTED and JUDGMENT IS ENTERED IN FAVOR OF DEFENDANT JAMES STEWART AGAINST PLAINTIFF.
II. Undisputed Facts Regarding Dr. Stewart's Relationship with the Hospital
For purposes of the present motion only, counsel for Plaintiff and for Dr. Stewart have agreed that the following facts are undisputed.
Beginning in approximately August of 2001, the Hospital contracted with Park City Solutions ("PCS") to provide interim management services to the Hospital while the Hospital recruited for a permanent director. The previous Administrative Director, a full-time hospital employee, had departed. PCS provided the Defendant, James E. Stewart, Ph.D., to temporarily fill the position of acting Administrative Director for the Hospital's medical lab in September of 2001. In January of 2002, the Hospital notified PCS of its intent to terminate its agreement with PCS for interim management services pursuant to the termination provisions of the agreement. It also informed PCS that it had offered Dr. Stewart the position of Administrative Director of its lab.
Rather than hire Dr. Stewart directly, the Hospital contracted for Dr. Stewart's services with Health Services, Inc. ("HSI"), a Massachusetts "S" corporation that Dr. Stewart had formed in February of 2002. Dr. Stewart was the president, sole shareholder and sole director of HSI. Dr. Stewart operated HSI out of his house. HSI filed its own tax returns, but maintained a joint bank account with Dr. Stewart. Though his son was the vice president, and his wife was the treasurer, Dr. Stewart was HSI's sole professional employee. HSI did not carry workers compensation insurance. Dr. Stewart did carry Errors and Omissions liability coverage.
On April 25, 2002, the Hospital and HSI executed a five (5) year Management Agreement. (A copy is attached as Exhibit A.) Pursuant to the agreement, HSI supplied Dr. Stewart to serve as the Administrative Director of Maryland General's lab. Through the Management Agreement, HSI became responsible for the overall management of the Maryland General lab, to include:
• operating the lab in such a manner so as to maintain the lab's licensure and accreditation;
• operating the lab in accordance with recognized professional standards;
• developing, reviewing, revising and implementing all Hospital policies and procedures relating to the lab;
• developing, reviewing, revising and implementing all Hospital programs affecting the lab including a training program, productivity review program, and a performance evaluation program;
• overseeing and implementing all administrative functions of the lab including budget, personnel, quality assurance, staffing, purchasing, inventory and materials management;
• providing day-to-day supervisory and oversight services for the operation of the lab to include authority to direct the performance of laboratory supervisors and staff.
Through the Management Agreement, HSI also assumed responsibility for performing management services consistent with the following specifications:
• services in accordance with all Hospital, Board, Medical Staff and Administrative objectives, programs and policies;
• provide services through HSI employees that maintain specified qualifications, including a Ph.D. in applied science and ten years laboratory management experience
• HSI to fulfill all responsibilities of employment for HSI employees including tax withholdings, insurance and benefits and to indemnify the Hospital for all amounts paid for violation of that responsibility;
• maintain professional liability insurance covering Dr. Stewart.
Through the Management Agreement, the Hospital, for its part, agreed to:
• Fulfill all responsibilities of employment for Hospital employees;
• Provide office space and equipment necessary for HSI to render services;
• Pay HSI a set monthly fee, adjusted annually for inflation.
The agreement provided that both parties would indemnify, defend and hold harmless the other party from any loses resulting from acts of negligence committed by a party.
The contract also specified in paragraph 8 entitled "Relationship Not Intended" that it was not the parties' intention to create, and the agreement did not create, a relationship of employment. It was agreed that HSI was an independent contractor and that it would have professional control and discretion in the appropriate and proper management of the Hospital's lab in accordance with the terms of the Management Agreement. The agreement further specified that HSI as an independent contractor was obligated to exercise the necessary skill and independent judgment in fulfilling the terms of the agreement. HSI was to communicate and coordinate with the contract administrator on all matters related to contract performance. The Management Agreement named Senior Vice President for Administration, William McMahon, as the person representing the Hospital's interests under the agreement.
Dr. Stewart was the only person that HSI ever provided to fulfill its responsibilities under the Management Agreement. Dr. Stewart assumed HSI's duties as the lab's Administrative Director in March, 2002. Mr. McMahon conducted yearly written appraisals of Dr. Stewart's performance.
Every two weeks, Dr. Stewart would complete a wire transfer request for payment pursuant to the agreement between HSI and the Hospital. Payments were wired by the Hospital to a joint bank account maintained by HSI and Dr. Stewart. Through March of 2003, transfers were wired payable to "Health Systems, Inc./J.E. Stewart." Beginning in April 2003, transfers were wired payable to "J.E. Stewart," although payments were still wired to the same account.
As Administrative Director of the Hospital's lab, those groups over whom Dr. Stewart had administrative and supervisory responsibility included the Chemistry I II sections where Plaintiff began working as a lab tech in November of 2002. Dr. Stewart had the power to direct Plaintiff's work and also had the power to discipline or fire her. Plaintiff's exposure occurred in March of 2003. Dr. Stewart continued in his duties until Mr. McMahon placed him on administrative leave in April of 2004 pending termination pursuant to the terms of the management agreement. HSA subsequently exercised the six-month termination provision of the Management Agreement.
During the time Dr. Stewart was providing laboratory management services to Maryland General Hospital pursuant to HSI's agreement with Maryland General, Dr. Stewart was also providing laboratory management consultant services to Dunn Memorial Hospital in Indiana pursuant to an agreement that Dunn Memorial had with Add-A-Tech, Inc. In October of 2002 HSI, through Dr. Stewart, entered into its own contract with Dunn Memorial to provide interim laboratory management services to the hospital through professional staff provided by HSI. Pursuant to the agreement, Dr. Stewart would provide periodic laboratory management consulting services and James Cassity would provide full time laboratory management services to Dunn Memorial while it searched for a full time Administrative Director. Dunn Memorial paid HSI for both Dr. Stewart and Mr. Cassity's services. HSI, in turn, paid Mr. Cassity pursuant to an independent contractor agreement. Dunn Memorial terminated its contract with HSI in March of 2003 when it hired Mr. Cassity directly.